Brown v. Mann

Foote, C.

— The motion to dismiss the appeal herein is not well taken, and should be denied. It is made for the reason, as alleged, that one of the defendants, in whose favor a judgment was rendered in the trial court, was convicted of embezzlement, and while acting as administrator became civiliter mortuus, and that, being sued as such, no service of notice of appeal could be made on him or his attorney. ISTo question of this kind was raised in any of the proceedings- in this cause until judgment was had in favor of the defendant, Otts, administrator, and his co-defendants, and it is now raised for the first time to prevent this appeal from being heard.

We are of opinion that the reasoning of this court in the case of the Estate of Nerac, 35 Cal. 396, applies here, and said administrator not being sentenced for life as a convict, his responsibilities to those having claims against him did not cease, although certain of his rights were for a time suspended. His letters as administrator were never revoked by the action of the court, to which he was subject as such officer. He litigated with the plaintiff at every stage of the cause, up to and including the rendition of the judgment in his favor, and only raises the point of his disability when an appeal is prayed for aimed at the reversal of that judgment. To allow his contention now to prevail would be manifestly unjust.

Seaels, C., and Beecher, C. C., concurred.

The Court. — For the reasons given in the foregoing opinion, the motion to dismiss the appeal is denied.